The Fitzgerald-Miller Grudge Match

Federal prosecutor Patrick Fitzgerald, the guy who sent New York Times reporter Judith Miller to jail this month, squared off against her in another case involving Miller's administration sources. The issue: Fitzgerald, as the U.S. Attorney for the Northern District of Illinois, was asked to investigate who told Miller, back in the fall of 2001, that the Bush administration was about to put a Chicago-area Muslim charity on a U.S. government list of designated terrorist groups. Miller, who had been reporting on the charity's alleged ties to terrorist figures for more than two years, got the tip, and shortly thereafter her Times colleague Philip Shenon reportedly called the Global Relief Foundation, and in asking for comment, alerted its officials that the group's assets were about to be frozen.

Some U.S. counter-terrorism officials and the 9-11 Commission find reason to believe the charity destroyed documents overnight in advance of an FBI raid (a charge Global Relief's lawyer has denied in the press). "I think there are people in the government who are concerned about her [Miller's] behavior in that case," a former U.S. government counter-terrorism official told the Voice, on condition of anonymity.

Asked to investigate the leak, Fitzgerald convened a grand jury and sought Miller and Shenon's phone records. On February 24, a federal judge sided with the Times against the Justice Department in the case (NYT v. Ashcroft), ruling that the newspaper has a First Amendment privilege to shield its confidential sources by blocking government access to phone records. The government has appealed the decision.

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Times attorney Floyd Abrams tells the Voice the paper won the Global Relief matter using the same arguments it lost with in the Plame case. "The court ruled in our favor on many of the very same issues," Abrams says. "Specifically that even in the federal grand jury context there is a qualified privilege for journalists under the First Amendment and federal common law protection that is qualifiednot an absolute privilege."

Does Abrams think Fitzgerald is nursing a grudge against Miller based on the Global Relief case? Abrams hesitates. "It's not entirely coincidental. Fitzgerald's view of Judy Miller was in part formed from her journalism," he says. "I have to tell you his [Fitzgerald's] reputation is very good. That said, there certainly is a sharpness and a tone. . . . "

Indeed, one could detect a whiff of resentment against The New York Times and Miller in Fitzgerald's arguments to the D.C. judge overseeing the Plame investigation, when he said Miller deserved jail and not home confinementnot only for her refusal to testify to that grand jury, but for the actual substance of her team's legal argument, e.g., that reporters have a First Amendment right not to have to testify about their sources. "There is tension between Miller's claim that confinement will never coerce her to testify and her alternative position that this court should consider less restrictive forms of confinement," Fitzgerald told the court.

In a profile of Fitzgerald during the NYT v. Ashcroft case, The Washington Post said the rugby-playing son of Irish immigrants had indicated that "reporters are not his targets." "We want to find out who leaked national security information," Fitzgerald told the judge, Robert Sweet.

But now Fitzgerald is reportedly considering whether to charge Miller with criminal contempt for refusing to testify. A conviction could extend her jail time past the grand jury's October deadline.